The spectre of IP rights abuse wears really cute prints

A day late, as usual, mainly because I don’t actually read Boing Boing unless someone else flags it in their blog.

Boing Boing outed the licensed fabric issue yesterday. Read the whole thing before you torch anybody (including Reprodepot’s response and the comments to Amy’s post, which includes comments from the designer in question). If this seems familiar, you’re probably thinking of the Amy Butler thing.

The story seems to be that a textile designer, whose fabric is sold online, once had problems with individuals buying her fabric, making items that may or may not have been at the acme of quality (doesn’t really matter), and invoking the textile designer’s name in describing their products. Of course, we don’t know how that was done, because there are many right ways and wrong ways to do that. There’s a difference between saying “this is a Designer X bag” (when Designer X merely designed the fabric, and had nothing to do with the manufacture of the bag) and “this is a bag I made from Designer X’s fabric”. (When this information becomes compressed in an eBay item title, it generally runs the risk of becoming misleading.) Let’s assume it was done in a wrong way that did adversely affect the designer’s business. In addition, the designer licensed a particular fabric design to another company. Possibly she agreed that she would not allow fabric to be printed and distributed with this design elsewhere. Overstock of the fabric was sold through online retailers, who posted restrictions on the purchase pages for that fabric; not certain who was responsible for selling the overstock to the retailers. Edit: I wrote this before I figured out that the licensee company… was the designer’s, as well, isn’t it? So if the licensee was a separate legal entity from the designer, then maybe there was indeed a licence, but this does make it seem that ultimately, it was the designer who caused the fabric to be sold to the retailers. But didn’t want purchasers to compete against her company with that fabric.

One online retailer (Reprodepot) had a pretty brief statement advising customers prohibiting commercial use of the fabric that seemed unfairly broad (and was the one attacked by Boing Boing). The other retailer had a more expansive policy statement that was not so daunting. You can see both in Amy’s post.

Thanks, I think, to the broad prohibitive statement on Reprodepot’s website — which, by the way, was not written by the textile designer — Boing Boing cast this as an abuse of copyright (without actually using the word “abuse”). But that’s not how it started out: the problem the designer had, at the outset, was apparently a trademark-related problem with vendors on eBay. And then possibly she had some kind of contractual restriction with a licensee, which may have been a contract relating in part to copyright, although any contractual term regarding the disposal of overstock fabric wouldn’t actually be a copyright issue (Edit: but see what I added, above). But because of the choice of verbiage on the Reprodepot site, it turned into some kind of omg-they’re-using-copyright-to-stop-people-from-making-legitimate-use-of-fabric! outrage. (Actually, the prohibition had been on the Reprodepot site for ages; it just happened to get boinged now.)

And the wording used by Reprodepot is unfortunate, because it caused grief for the retailers and the designer in question. Technically, yes, it is possible to craft an agreement with customers prohibiting certain uses of any given fabric — not on a copyright basis, but on a purely contractual basis. (That would be up to the retailer to enforce against customers, since the customer enters into the contract with the retailer; but if the customers trespassed on the designer’s trademark or other rights, then it would be up to the designer to enforce those rights.) An example of this would be the current Amy Butler policy: if you buy the fabric wholesale, you must comply with certain terms. If you buy the fabric at retail, you’re not bound by those terms. (Butler’s policy wasn’t always like this.) That’s similar but not identical to this situation, because the retailers were selling both “restricted” and “non-restricted” fabrics at the same time.

The good thing is that as a result of the blowup, the Reprodepot statement and the designer’s position was clarified, just as Amy Butler’s was after consumers of her fabric became outraged at her earlier policy that limited sale of products from fabric purchased at retail. Fortunately for her, she didn’t have to be boinged before she made changes. Ouch.